by John Bellinger

Since readers have no doubt tired of the law of war by now, I would like to change topics and address some of the immunity issues that confront L on a regular basis. Most of you are familiar with the Foreign Sovereign Immunities Act (FSIA), 28 U.S.C. 1330, 1602 et seq., which codified the restrictive theory of the immunity of states and established procedures for bringing suits and enforcing judgments against foreign states (including their political subdivisions and agencies and instrumentalities). A principal purpose of the FSIA was to provide courts with the tools to determine when immunity would apply in suits against foreign states, obviating the need for the Executive Branch to file suggestions of immunity on behalf of foreign states. But L, in conjunction with the Department of Justice, continues to play an important role in providing guidance to our courts on the various immunity issues they confront.

The immunity of foreign government officials is one example. The FSIA does not by its express terms address the immunity of such officials. Several Executive Branch officials who worked on the formulation of the FSIA wrote that it did not deal with such officials when they published a review of pre-FSIA sovereign immunity decisions in the Department of State’s 1977 Digest of international practice. And, the House Report on the FSIA stated that it would have no effect on diplomatic or consular immunity. Nevertheless, in Chuidian v. Philippine National Bank, 912 F.2d 1095 (1990), the Ninth Circuit concluded that the FSIA should apply to foreign government officials as “agencies,” so as to prevent an “end run” around state immunity. In that case, this approach produced the same result — immunity — advocated by the Executive Branch, but on a theory — applicability of the FSIA — that the Executive Branch did not advance. The point is not academic, because the FSIA treats “agencies” differently than other components of a state and would not, for example, accord immunity to officials for commercial activities undertaken while merely carrying out normal governmental functions. Since 1990, some other circuits have adopted the Chuidian reading of the FSIA, such as the D.C. Circuit in El-Fadl v. Cent. Bank of Jordan, 75 F.3d 668 (1996) and the 6th Circuit in Keller v. Cent. Bank of Nigeria, 277 F.3d 811 (2002). Just this past November, at the request of Judge Pauley of the Southern District of New York, the Executive Branch reiterated the position it advanced in Chuidian – that the immunities of foreign government officials generally derive from federal common law as informed by international custom, rather than the FSIA, in a Statement of Interest filed in Matar v. Dichter, S.D.N.Y. 05 Civ. 10270 (WHP). This approach avoids some of the obvious problems of the Chuidian approach and is more consistent with the position taken by the United States on behalf of its own officials when they are sued abroad.

In addition, certain categories of foreign officials are accorded immunity by more specific legal regimes. Diplomatic and consular officers enjoy immunities under the Vienna Conventions on Diplomatic and on Consular Relations, respectively, bilateral treaties with certain countries, and in some instances customary international law. These sources reflect some of the oldest principles of international law, which recognize the importance of facilitating a sovereign state’s unimpeded representation within each other’s jurisdictions. The Executive Branch does not necessarily play a role in cases involving the immunities of such officers, because we expect the states or officers involved to retain private counsel for the officers’ representation. The State Department does, however, certify the status of diplomatic and consular officers and may work with the Department of Justice to file a statement of interest addressing issues in a case. For example, we have filed to address whether a particular type of action by a consular officer should be regarded as performance of a consular function falling within the scope of a consular officer’s immunity for official acts. We also, when necessary, advise arresting officers and prosecutors of the applicable criminal immunities of diplomatic and consular officers. This advisory practice significantly reduces the need for criminal immunity issues to be litigated in court.

Another basis for foreign government officials’ immunity that is independent of the FSIA is the doctrine of head-of-state immunity. When applicable, it entails full personal immunity from the jurisdiction of U.S. courts. The Executive Branch has a longstanding practice of affirmatively “suggesting” head-of-state immunity to our courts when a person who enjoys the immunity has been served with judicial process. The practice dates at least to the mid-1960s, when such suggestions were made with respect to the South Korean Foreign Minister (1963) and King Faisal of Saudi Arabia (1965). Since then, we have suggested head-of-state immunity in some thirty cases which have dealt with heads of state, heads of government, the spouse of a head of state, and foreign ministers. The doctrine of head-of-state immunity recognizes the unique role played by government leaders and the special sensitivities of exposing them to civil litigation in foreign courts, particularly while they are still in office.

Another immunity that may be accorded to foreign officials is special mission immunity, which is also grounded in customary international law and federal common law (Like most countries, the United States has not joined the Special Missions Convention.). The doctrine of special mission immunity, like diplomatic immunity, is necessary to facilitate high level contacts between governments through invitational visits. The Executive Branch has made suggestions of special mission immunity in cases such as one filed against Prince Charles in 1978 while he was here on an official visit. Kilroy v. Charles Windsor, Prince of Wales, Civ. No. C-78-291 (N.D. Ohio, 1978). This past summer, in response to a request for views by the federal district court for the D.C. Circuit, the Executive Branch submitted a suggestion of special mission immunity on behalf of a Chinese Minister of Commerce who was served while attending bilateral trade talks hosted by the United States, in Li Weixum v. Bo Xilai, D.C.C.Civ. No. 04-0649 (RJL).

Our suggestions of immunity normally respond to requests from a foreign government made after its official has been served with a complaint in a civil action. We usually ask that the request be conveyed through a diplomatic note, with all relevant information and documents, including of course the summons and complaint. If we agree that a suggestion of immunity should be filed, the Justice Department submits one to the court on behalf of the Executive Branch. These filings are typically very short because, once we have determined that an official enjoys immunity, we expect the court to defer to that decision, in accordance with well-established judicial doctrines tracing back to The Schooner Exchange v. McFaddon, 11 U.S. (7 Cranch) 116 (1812).

Our immunity practice also encompasses international organizations (IOs). Here the governing standard is usually the International Organizations Immunities Act (IOIA) rather than the FSIA. If IOs are sued in our courts we normally expect them, like foreign governments, to appear in court to assert their own immunity. The United Nations is an exception, however. Under Section 2 of the UN Convention on Privileges and Immunities, the UN has complete immunity from suit in the US, including “from every form of legal process.” Officials of IOs generally have official acts immunity, but a small number of officials of the UN and the Organization of American States have full diplomatic immunity pursuant to our headquarters agreements with them.

Finally, back to the FSIA. While it ended the Department of State’s practice of suggesting immunity on behalf of sovereign states, it by no means ended the Department’s participation in litigation against foreign states. Along with the Department of Justice, L works to ensure that the FSIA is interpreted and applied properly, bearing in mind its purpose and the reciprocity and foreign policy issues that could arise from the decisions of our courts. We do not keep track of all of the many cases in our courts that involve FSIA issues, but we participate as amicus when our views are requested by the courts and occasionally on our own initiative or in response to a request by parties to the litigation. Most recently, for example, in response to a Supreme Court request for views with respect to two petitions for certiorari (Nos. 05-85 and 05-584), the Executive Branch argued that the Court should address two 9th Circuit decisions involving whether a Canadian entity — Powerex Corporation — is an “organ” of British Columbia and, therefore, an “agency or instrumentality” of a foreign state under the FSIA.

The sovereign and official immunity rules the United States applies domestically have important implications for how the United States and its officials are treated abroad. Thus immunity outcomes in our courts are relevant not merely because of the potential immediate foreign policy consequences of U.S. exercises of jurisdiction. In cases in which immunity precludes litigation, whether in the United States against foreign states and their officials or abroad against the United States and its officials, we may also — in appropriate cases — look for other ways to help resolve the underlying dispute. In addressing immunity questions we carry out research and analysis of treaties and international practice with the goal of establishing principles that will benefit all countries. Recent developments that we have followed with particular interest have included the February 2002 decision of the International Court of Justice (ICJ) in the “Arrest Warrant” or “Yerodia” case (Democratic Republic of The Congo v. Belgium),
in which the ICJ ordered Belgium to cancel a warrant for the arrest of the DRC’s Foreign Minister after concluding that the Foreign Minister enjoyed absolute criminal immunity and inviolability under international law when abroad. Another case we have examined is the U.K. House of Lords’ decision in the civil action Jones v. Ministry of Interior (of Saudi Arabia), in which their Lordships discussed The Arrest Warrant Case at considerable length as part of a comprehensive examination of the immunity of foreign government officials generally.

As you can see, we have a robust litigation practice involving the immunities of foreign states and international organizations and their respective officials. It is a rich and intellectually rewarding area of work, and I welcome your comments on it.

4 Responses

  1. It appears from the discussion of suggestions of immunity that the US position is that an assertion of head of state (or foreign minister) immunity is something which the government can accept or not accept as it sees fit. This is of course not the position taken by the ICJ in the Yerodia case, where it found that the immunity of a foreign minister was established under customary international law, and that the issuance by Belgium of an arrest warrant against Yerodia, even if it was never enforced, caused “moral injury” to the Congo. It is interesting to hear that the US has followed this (to my mind idiotic) decision with “particular interest” – but I presume that we have no intention of accepting it – is that correct?

  2. Does the head of state and foreign minister extends to acts that are not considered as a matter of international law permitted actions in the role of head or state or foreign miniter. For example, does the US follow the House of Lords view of Pinochet’s immunity or not?

  3. Thank you, Mr Bellinger.

    As you may be aware, the House of Lords in Jones v. Saudi Arabia passed comment not only on the Arrest Warrant case, with it treated with the greatest respect (see per Lord Bingham of Cornhill, at para. 24), but also on a number of American cases, which followed Chuidian (see per Lord Bingham of Cornhill, at para. 20, and per Lord Hoffmann, at paras. 95-99. I should perhaps add that the other three members of the House agreed with the speeches of Lord Bingham and Lord Hoffmann, and that these two Lords of Appeal agreed with one another. This makes it fairly easy to understand the judgment of the House as a whole, which only appears from the speeches of its – usually five – members).

    These US cases established under the construction of the FSIA that you mentioned that foreign officials would be immune in respect of their ‘official acts’, and that acts performed ultra vires were not ‘official acts’. Accordingly, no immunity, under the FSIA or at common law (which was not considered but therefore plainly regarded as failing to demand a contrary conclusion), was available in respect of any ultra vires acts, and this was quite regardless of the severity of the excess of powers. There was, in particular, no suggestion that there would be immunity except for serious international crimes such as torture or crimes against humanity.

    Of course, the British judges treated the US cases with great respect (para. 20), but ultimately concluded that the cases were ‘contrary to customary international law’ (para. 99). (When Lord Chief Justice, Lord Bingham of Cornhill had made a similar suggestion at first instance in Re Augusto Pinochet Ugarte, ILM 38 (1999), pp. 70 et seq.)

    For what it’s worth, I entirely agree with their Lordships’ approach, and disagree with Chuidian, et al., insofar as the validity of the Chuidian definition of ‘official acts’ as a matter of international law is concerned.

    In international law, immunity ratione materiae attaches to the official acts of every acting or former State organ. (Its application to all organs regardless of rank is sometimes overlooked, e.g. by Lord Nicholls of Birkenhead in Pinochet (No. 1) and Lord Browne-Wilkinson in Pinochet (No. 3), but this fails to explain the discussion of the rule at Nuremberg and in Eichmann, to name only two famous cases) This is because the sovereign acts of one State cannot be impleaded in the courts of another State, an equal sovereign (Article 2(1) of the UN Charter) (par in parem non habet imperium). Indeed, I would much prefer to call this immunity not immunity ‘ratione materiae‘ (immunity by reason of the subject-matter), but immunity ‘materiae’ (immunity of the subject-matter), so as to underline that the immunity applies to the acts, and belongs to the State, alone.

    The relevant test is therefore whether the acts in question are truly acts of the State, i.e. whether the responsibility of the State could arguably be engaged by them, and is liable to be determined by a foreign court sitting in judgment on them (whether under international law, or their own). The test is therefore the same as the test of attributability that we all know from the law of State responsibility. Indeed, the ILC points out as much in its commentary on the Draft Articles on State Responsibility (albeit without spelling out quite why the tests are the same), and so does the House of Lords in Jones v. Saudi Arabia (for all the correct reasons, clearly spelled out, at para. 74).

    Now, in the law of State responsibility, it is, of course, a commonplace that the ultra vires acts of State organs are attributable to the State. It follows that they also attract immunity ratione materiae.

    To be sure, I am quite prepared to accept that severe international crimes do not, in the end result, attract such immunity, and I might be more prepared to do so than their Lordships’ House was in Jones (there are issues of interpretation with regard to that judgment). Indeed, this much has been accepted at Nuremberg, in Eichmann, in Pinochet (No. 1), and in many other cases, including a considerable number of ICTY decisions (I note in passing that the view by which immunity ratione materiae is available only to former holders of immunity ratione personae, viz. heads of State, is woefully inconsistent with the usual citation of Nuremberg, Eichmann, etc. for the ‘international crimes’ exception). However, I very much incline to the view that this is not because such crimes are not ‘official acts’ (see Jones, at paras. 72-99), but because of a separate rule of customary international law precluding the effect of such a finding (precluding, that is to say, immunity). But I would clearly reject the sweeping assertion in Chuidian that ultra vires acts are never ‘official acts’.

    It would therefore appear that US courts will be, indeed have been, unwilling to accept a foreign official’s claim of immunity even where international law would require that it be accepted.

    On the basis of these remarks, might I enquire what the role of the State Department will be in such a case. You note (if I may say so, to my great relief) that the executive does not necessarily agree with Chuidian, but you also say that ‘L works to ensure that the FSIA is interpreted and applied properly’. Is this the FSIA, to the exclusion of possibly conflicting international law? Or will the State Department ensure also, in the interest of friendly relations with foreign States, that their rights under international law are respected?

    (I take it that Eric Posner has described the State Department’s role in similar terms, whereas Benjamin Davis has asked if ‘everyone [has] moved to U.S. Foreign Relations Law’)

    Again, thank you for turning to sovereign immunity, and showing that not all parts of US practice in international law are necessarily as dramatic (or, shall we say, disputable) as that on some issues in the law of war.

  4. I see that Benjamin Davis has posed a very interesting question while I have been typing my (rather too long – sorry) post.

    Might I just point out with respect to that question that the House of Lords in Jones v. Saudi Arabia has also clarified the holding of the Pinochet case, in a manner that will surprise many, but seems correct (paras. 86-94 of Jones, per Lord Hoffmann).

    As it appears now, Pinochet (No. 1) never decided that torture was not an ‘official act’ for the purposes of immunity ratione materiae. The House held that torture was not a ‘function of a head of State’, within the meaning of the State Immunity Act 1978. It added that the immunity ratione materiae at customary international law (and therefore common law) was inconsistent with the universal jurisdiction over the crime of torture, as it appears in the Convention against Torture of 1984. There is, therefore, no suggestion here that torture is not an official act within the meaning of customary international law, but it is, in the end result, unavailable due to a separate rule.

    This solution appeared again in some of the speeches in Pinochet (No. 3) (as may be well known, Pinochet (No. 1) was vacated in Pinochet (No. 2) on the grounds of an appearance of bias on the part of Lord Hoffmann, and the case was referred to a new bench in the House of Lords, this time composed of seven Lords of Appeal), but not in a majority of the speeches. The way of giving judgments in the House, with every one of their Lordships reading his judgment, and the judgment of the House following from the lowest common denominator of the majority, is particularly confusing in this case, as is the habit of some judges to give several, in themselves sufficient, reasons for their proposed disposition of the appeal.

    Instead of affirming that there was no immunity ratione materiae with respect to acts of torture, the majority in Pinochet (No. 3) held that such immunity had been waived by Chile’s accession to the Convention against Torture. The definition of torture there required that it be committed (or instigated, etc) by a public official, and there was an obligation on States parties to prosecute torturers, and to take universal jurisdiction over them. The House held that an element of the offence could not at the same time give rise to a defence to jurisdiction (namely one of immunity), so the Convention had taken away any immunity ratione materiae.

    This construction is obviously rather limited, in that it depends on the specific definition of torture in the Convention, and depends also on the specific terms of the provisions on universal jurisdiction. Indeed, it was for the latter reason that the House was able to decide in Jones that the immunity ratione materiae pertaining to the individual defendants’ alleged acts of torture had not been waived as in Pinochet (No. 3), because Jones was a civil case and the provisions of the Convention on civil claims could not be read in the same way that the criminal rules had been in Pinochet (No. 3). There was also insufficient support in State practice for a rule excluding immunity ratione materiae for severe crimes in civil cases (the criminal cases usually cited for this proposition were treated as irrelevant).

    Lord Bingham also seemed to say that Pinochet (No. 1) was no longer good law in the sense of the rules of precedent, after it had been vacated in Pinochet (No. 2) and presumably superseded by Pinochet (No. 3). For our present purposes, this may raise the question whether Pinochet (No. 1) still counts as the State practice of the United Kingdom, or, if so, to what extent it can still be regarded as such.

    But, of course, there remains abundant authority for the proposition that international crimes do not attract immunity ratione materiae (see A. Cassese, ‘When May Senior State Officials be Tried for International Crimes? Some Comments on the Congo v. Belgium Case’, EJIL 13 (2002), pp. 853, 870-871, for examples). Like Mr Davis, I too would be eager to know if the US goverment agrees.

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